United States District Court, E.D. California
CINDY CE CE YOUNG, formerly known as CHRISTOPHER DUKE YOUNG, Plaintiff,
CHRISTOPHER SMITH, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
M. KELLIS UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
is defendant Smith's motion to dismiss (Doc. 45), joined
by defendant Andrews (Doc. 54).
action proceeds on plaintiff's first amended complaint
against Christopher Smith and Dr. Andrews. Plaintiff states
that, beginning in early 2011, he sought additional medical
and mental health treatment for gender dysphoria.
Specifically, plaintiff claims that defendant Smith rejected
as unnecessary recommendations from plaintiff's
“regular hormone doctor” that he receive hair
removal treatments, bleaching creams, and female clothing.
Plaintiff alleges that defendant Smith did not base his
decision on any medical grounds but solely on a prison policy
of not providing treatment for gender dysphoria.
alleges that defendant Andrews was consulted by
plaintiff's “clinician, ” L. Bessemer, in
August 2014 regarding gender dysphoria treatment but that
defendant Andrews “personally blocked potential
treatment by telling me and Bessemer that there was no
authorized services/treatments” for gender dysphoria
patients. According to plaintiff: “This statement I
later found out was untrue, and this defendant [Andrews] was
deliberately indifferent to my serious medical needs for
lying. . . .” Plaintiff states that, by February 2015,
he was placed in a higher level of mental health care after
he threatened to cut off his genitals himself.
relief, plaintiff seeks a declaration that defendants'
acts were unconstitutional, an order directing defendants to
provide an individualized evaluation of plaintiff's
medical case by a qualified gender dysphoria specialist, and
an order directing defendants to “follow the
recommendations already given by medical specialist.”
STANDARDS FOR MOTION TO DISMISS
considering a motion to dismiss, the court must accept all
allegations of material fact in the complaint as true.
See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
The court must also construe the alleged facts in the light
most favorable to the plaintiff. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); see also Hosp.
Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740
(1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th
Cir. 1994) (per curiam). All ambiguities or doubts must also
be resolved in the plaintiff's favor. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However, legally
conclusory statements, not supported by actual factual
allegations, need not be accepted. See Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro
se pleadings are held to a less stringent standard than those
drafted by lawyers. See Haines v. Kerner, 404 U.S.
519, 520 (1972).
8(a)(2) requires only “a short and plain statement of
the claim showing that the pleader is entitled to
relief” in order to “give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Bell Atl. Corp v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, in order to survive dismissal for
failure to state a claim under Rule 12(b)(6), a complaint
must contain more than “a formulaic recitation of the
elements of a cause of action;” it must contain factual
allegations sufficient “to raise a right to relief
above the speculative level.” Id. at 555-56.
The complaint must contain “enough facts to state a
claim to relief that is plausible on its face.”
Id. at 570. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 129
S.Ct. at 1949. “The plausibility standard is not akin
to a ‘probability requirement, ' but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). “Where a complaint pleads facts that
are ‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility for entitlement to
relief.” Id. (quoting Twombly, 550
U.S. at 557).
deciding a Rule 12(b)(6) motion, the court generally may not
consider materials outside the complaint and pleadings.
See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir.
1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.
1994). The court may, however, consider: (1) documents whose
contents are alleged in or attached to the complaint and
whose authenticity no party questions, see Branch,
14 F.3d at 454; (2) documents whose authenticity is not in
question, and upon which the complaint necessarily relies,
but which are not attached to the complaint, see Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001);
and (3) documents and materials of which the court may take
judicial notice, see Barron v. Reich, 13 F.3d 1370,
1377 (9th Cir. 1994).
leave to amend must be granted “[u]nless it is
absolutely clear that no amendment can cure the
defects.” Lucas v. Dep't of Corr., 66 F.3d
245, 248 (9th Cir. 1995) (per curiam); see also Lopez v.
Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
Smith argues: (1) this action has become moot because
plaintiff was approved for gender reassignment surgery on
April 12, 2016; and (2) plaintiff fails to state a claim
under § 1983 because plaintiff alleges nothing more than
a disagreement in medical opinion. Defendant Andrews joins in
defendant Smith's argument that the case is moot.
court does not agree that the action has been rendered
completely moot by the April 2016 approval for gender
reassignment surgery. As plaintiff notes in opposition to
defendant Smith's motion, while gender reassignment
surgery has been approved, no provision has been made for
hair removal treatments, bleaching creams, and female
clothing which plaintiff claims have been recommended by Dr.
Kumar. Therefore, plaintiff's third request for relief -